PROCEDURAL HISTORY

On November 21, 2000, Parents on behalf of Student (hereafter, Student A) filed a Request for Hearing before the Bureau of Special Education Appeals (hereafter, BSEA) against the Boston Public Schools (hereafter, BPS). On December 8, 2000, Student A filed an Amended Request for Hearing and simultaneously filed a Motion for Joinder of the Massachusetts Department of Education (hereafter, DOE). By Orders of December 18, 2000 and December 19, 2000, this Hearing Officer granted the Motion to Join DOE.

On December 18, 2000, Parents on behalf of a second Student (hereafter, Student B) filed a Request for Hearing with the BSEA against BPS, and simultaneously filed a Motion to Intervene in the case involving Student A. By Order of January 2, 2001, this Hearing Officer allowed the Motion but only with respect to any common legal issues.

On January 5, 2001, Parents on behalf of Student A and Student B filed a Motion for Partial Summary Judgement on the following issues:

1. Whether BPS violated provisions of special education law when it failed and refused to seek consent and conduct an evaluation to determine eligibility for special education after the student was referred for an evaluation by parent.

2. Whether DOE violated provisions of special education law by issuing policy and forms for use by school districts which fail to require school districts to evaluate a student who is referred for an evaluation by a parent.1

Simultaneously, Parents filed a Memorandum In Support of Motion for Partial Summary Decision [sic] (hereinafter, Parents’ first Memorandum of Law).

On January 12, 2001, DOE filed a Motion for Summary Judgment as well as a Memorandum in Support of its Motion for Summary Judgment and in Opposition to Students’ Motion for Partial Summary Judgment (hereafter, DOE’s Memorandum of Law). On that date, BPS filed its Memorandum in Response to Motion for Partial Summary Judgment (hereafter, BPS’s Memorandum of Law). On January 25, 2001, Parents filed their Memorandum in Further Support of Parents’ Motion for Partial Summary Decision and in Opposition to DOE’s Motion for Summary Judgment (hereafter, Parents’ second Memorandum of Law.) On January 29, 2001, a Hearing was held on Students’ Motion for Partial Summary Judgement and DOE’s Motion for Summary Judgment.

FACTS

BPS and Parents of Student A have stipulated to the following facts with respect to Student A:2

· Student A is a five year old boy who lives in Boston and attends kindergarten at St. Andrews School, a parochial school in Boston.

· On or about October 4, 2000, Student A’s mother (hereafter, Mother A) spoke with the Evaluation Team Facilitator (hereafter, ETF) for the Agassiz Community School, a BPS school, requesting a referral of her son to determine his eligibility for special education. The ETF informed Mother A of a six-week pre-referral process.

· On or about October 5, 2000, BPS sent Mother A written notice of its “refusal to evaluate at this time” and a Parent’s Rights Brochure. DOE’s Parent’s Rights Brochure informs parents that a school district may refuse to conduct an assessment requested by the parent but that parents are entitled to written notice of the refusal from the school district.

· DOE, through its April 2000 IEP Process Guide (hereafter, DOE’s Process Guide), has advised public schools that they may choose not to evaluate a student who has been referred for evaluation by a parent or other individual. DOE has also developed and disseminated a state form entitled “Notice of School District Refusal to Act” and numbered “N-2.” DOE’s Process Guide instructs school districts that this is the form to use “if a school district refuses to evaluate.”

· Relying on this DOE written guidance, BPS notified Mother A that BPS was refusing to evaluate her son. BPS sent written notice to the Mother A using DOE form “N-2.”

· BPS ultimately evaluated Student A and convened a Team meeting on December 20, 2000. The Team developed an Individualized Education Plan for Student A that proposes occupational therapy and physical therapy.

Although BPS and Parents of Student B have not stipulated to facts regarding Student B, the following facts are not in dispute.

· Student B is a thirteen-year-old boy who lives in Boston and is enrolled at the Grover Cleveland Middle School.

· On or before October 26, 2000, BPS received a request from Student B’s Mother (hereafter, Mother B) or his Guardian ad Litem requesting that BPS initially evaluate Student B to determine his eligibility for special education services.3 BPS did not seek consent from the Parent or Guardian ad Litem within five days of the request for evaluation.

· BPS did not evaluate Student immediately and did not evaluate Student within thirty school days of parental consent. However, on or before January 25, 2001, BPS had completed all of the evaluations (including completion of the written evaluation reports) for which parental consent had been sought initially, as well as three additional evaluations. As of January 29, 2001, one remaining evaluation was in the process of being completed. These evaluations began on January 5, 2001.

· A Team meeting had been originally scheduled for January 16, 2001 but was re-scheduled for (and did occur on) January 26, 2001. The Team has agreed to reconvene on February 12, 2001.

An important question that is disputed regarding Student B is whether BPS did or did not initially refuse to evaluate him.

Although both Students present a similar fact pattern with points of commonality, it is Student A who most clearly presents the relevant facts from which the legal dispute arises. I will therefore focus this Ruling first on Student A and then address Student B.

With respect to Student A, the facts may be distilled down and briefly summarized as follows. The parents referred their child to BPS for an evaluation to determine whether he was eligible for special education. BPS took the position that it would decide whether to evaluate the child based on a six week pre-referral process, thereby initially declining to seek parental consent and delaying any evaluation of the child.

ANALYSIS

1. Whether BPS Violated Special Education Law
by Initially Refusing to Evaluate Students.

The first issue posed by Parents in their Motion for Partial Summary Judgment is:

Whether BPS violated provisions of special education law when it failed and refused to seek consent and conduct an evaluation to determine eligibility for special education after the student was referred for an evaluation by parent.

In BPS’s Memorandum of Law, BPS asks a preliminary question that it believes should first be answered by this Hearing Officer:

Does a public school in Massachusetts have any discretion not to evaluate a child who has been referred to the school district by a parent or other individual, assuming the parent consents to the evaluation?

I agree that it is appropriate to first address BPS’s question, at least as it applies to BPS with respect to Student A and Student B.

With respect to Student A, BPS relied on written guidance from DOE which gives a school district discretion as to whether to evaluate a particular child. The referenced DOE guidance is DOE’s Process Guide that provides in relevant part at page 6:

School districts may choose not to evaluate.

If a parent or other individual requests an evaluation and the district does not suspect that the student has a disability, the district may choose not to evaluate the student but must provide a notice of refusal. The parent has the right to challenge such a decision through a due process hearing.

BPS apparently implements this DOE guidance by using a six-week pre-referral process to determine whether it will proceed with an evaluation.

1. State special education regulations and statute relevant to initial evaluations .

An analysis of the question of whether BPS has discretion to make a decision not to evaluate a student (who has been referred and whose parent would consent to an evaluation) begins with that part of the state special education regulations most directly on point.

The state regulations first describe the process for referral for an initial evaluation by parent or other person (such as a caregiving or professional position concerned with the student’s development) and then require the school district to send written notice to the child’s parent(s) within 5 school days of receipt of the referral.

The regulations set forth specific standards regarding the content of the notice, including the requirement that the school district seek consent from the parent(s) for an initial evaluation. 603 CMR 28.04(1).

The state regulations then explain at 603 CMR 28.04(2):
(2) Initial Evaluation . Upon consent of the parent, the school district shall provide or arrange for the evaluation of the student by a multidisciplinary team within thirty (30) school days.

The subject of initial evaluation is again addressed when the regulations discuss the Team process and the development of the IEP. 603 CMR 28.05(1) repeats the mandate of an initial evaluation within 30 days of parental consent, and further places this requirement within the larger evaluation context, requiring that the evaluation, the determination of eligibility (which is based, in part, on the evaluation) and the development of any IEP all occur within 45 days of parental consent. These regulations provide in relevant part:
(1) Convening the Team . Within forty-five (45) school working days after receipt of the parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required, develop an IEP … . The evaluation assessments shall be completed within thirty (30) school working days after receipt of parental consent for evaluation.5

The state regulatory definition of Eligible student further provides, at the end of the definition at 603 CMR 28.02(9), the following language:

In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.

The state regulations at 603 CMR 28.05(2) further describe the process for determining eligibility:
(a) Eligibility determination . The Team shall examine the evaluative data, including information provided by the parent, and make one of the following determinations [that the student is or is not eligible to receive special education and related services].

Four governing principles emerge from these regulatory and statutory sections. First, upon receipt of a referral, a school district must notify parents within 5 days. The notice must include certain required information and must seek consent from the parent(s) for an initial evaluation . Second, the initial evaluation must occur within 30 days of parental consent. Third, the school district must then make an eligibility determination (which includes a finding of whether the student has the requisite disability) on the basis of the evaluation, as well as other information. Fourth, the eligibility determination (as well as the development of any IEP) must occur within 45 days of the school district’s receiving parental consent for the evaluation.

2. DOE’s position regarding the law relevant to initial evaluations .6

Having set forth the applicable state special education statutory and regulatory structure, I now turn to the arguments presented by DOE.

DOE’s Memorandum of Law argues that the state statutory and regulatory framework allows a school district discretion to refuse a parent’s request for an initial evaluation. DOE relies on two legal arguments relevant to state law.

First, DOE points to MGL c. 71B, s. 3 which provides that a school district shall “identify the school age children residing therein who have a disability . . . , [and] diagnose and evaluate the needs of such children.” The statute further provides that “[u]ntil proven otherwise every child shall be presumed to be appropriately assigned to a regular education program and presumed not to be a school age child with a disability or a school age child requiring special education.”

DOE then emphasizes that this statute explicitly provides the above to occur “[i]n accordance with [DOE’s] regulations, guidelines and directives.” DOE argues, from this, that it has the authority to make determinations relevant to initial evaluation and eligibility determination through its regulations, guidelines and directives.

DOE’s point is well taken. However, it is also clear (and presumably DOE does not dispute) that its regulations must be consistent with statute, and its guidelines and directives must be consistent with both its regulations and statute since properly promulgated regulations which are consistent with statute have the force and effect of law. (In this Ruling, the term “law” is used to refer to both statute and regulations.) The task then becomes to understand DOE’s relevant regulations, guidelines and directives within this legal context.

Second, DOE turns to the definition of the term Notice and makes what appears to be its principal argument. The term Notice , as found in the state special education regulations at 603 CMR 28.02(13), is defined as follows:

Notice shall mean the notice and content required in accordance with the federal special education law whenever the school district proposes or refuses to initiate or change the identification, evaluation, or educational placement or the provision of special education services to the student.

DOE focuses on the words “refuses to initiate … the … evaluation,” arguing that when this language and other parts of the regulations are read as a whole, they can only mean that a school district has the discretion to refuse to conduct an initial evaluation in appropriate circumstances.

I find this argument unpersuasive for three reasons.

First, I do not believe the words in the definition of Notice are as clear as DOE would suggest. The word “initiate” (as appearing in the definition) is apparently construed by DOE to refer to an initial evaluation. However, the word “initiate” is used not as an adjective but as a verb which means “to begin or set going.” Webster’s Third New International Dictionary (1993). Understood from this context, the definition of notice contemplates generally the possibility of a refusal of the school district to conduct an evaluation, but does not speak directly to the question of whether a school district may refuse an initial evaluation.

It is apparent that after an initial evaluation and determination of eligibility, a parent might request another evaluation which the school district may properly refuse. A school district does not have an unlimited responsibility to do whatever evaluations at whatever time are requested by a parent. See generally 603 CMR 28.04. In other words, the definition of Notice is consistent with the requirements (found later in the state regulations) that a school district may refuse certain requests for evaluation but may not refuse to conduct an initial evaluation after referral and parental consent.

Second, assuming arguendo that the words in the Notice definition may be construed to reflect the principle that a school district has discretion to refuse to do an initial evaluation, definitional language (which makes reference to when a notice may be used) should not be interpreted to override the mandates of other regulations which more directly and more precisely address the school district’s obligations regarding notice and initial evaluation (see 603 CMR 28.04(1) and (2), and 28.05(1)). In other words, any inconsistency between the definition of Notice and the subsequent regulatory mandates, which more specifically address the issue at hand, should be resolved in favor of the latter.

Third, again assuming arguendo that the words in the definition of Notice may be construed to reflect the principle that a school district could refuse to do an initial evaluation, the regulatory language defining Notice would then be in conflict with statutory language which explicitly requires that the evaluation occur within 30 days of parental consent (see MGL c. 71B s. 3, par 5, discussed above in footnote 4) and would be in conflict with regulations (603 CMR 28.05(1)) which the legislature has mandated that the Board of Education “continue in effect and enforce” (Chapter 159, section 418 of the Acts of 2000, discussed above in footnote 5). A regulation may not be interpreted in a manner that conflicts with a statutory mandate.

For these reasons, I do not find the language contained within the definition of Notice to be relevant to the statutory and regulatory mandates described in part A1 of this Ruling.

Next, DOE’s Memorandum of Law argues that DOE’s interpretation of MGL c. 71B and its own regulations, through its guidelines and directives, is entitled to deference. DOE cites to Massachusetts case law which provides that an agency’s interpretation of its own regulations is entitled to “substantial deference” and that its interpretation of its own statute is entitled to “weight and deference.” E.g., Emerson Hospital v. Rate Setting Commission , 408 Mass. 785, 788 (1990); Massachusetts Medical Society v. Commission or Insurance , 402 Mass. 44, 62 (1988).7

In a more recent decision, however, the Massachusetts Supreme Judicial Court has clarified that although, in general, the court grants substantial deference to an agency’s interpretations, “[a]n incorrect interpretation of a statute … is not entitled to deference.” The court rejected the agency’s interpretation in this case as it was “contrary to the plain language of the statute and its underlying purpose.” Massachusetts Hospital Association v. Department of Medical Security , 412 Mass. 340, 346 (1992) (citations omitted). See also Kemmie Woods and Other v. Executive Office of Communities and Development , 411 Mass. 599, 606 (1992) (“erroneous interpretation of a statute by an administrative agency is not entitled to deference”).

Similarly, the First Circuit Court of Appeals has concluded:

The starting point for interpretation of a statute is the language of the statute itself. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If the statutory text and congressional intent are ambiguous, [the agency’s] interpretation is entitled to deference if it is reasonable. [Internal quotations and citations omitted.]

The language and intent of both the state regulations and the state statute are clear and unambiguous on their face.8 The plain meaning of the law leaves no room for DOE’s interpretation, which would carve out a statutory and regulatory exception where none has been provided.9 Pursuant to the above-quoted judicial decisions, I conclude that I have no choice but not to defer to DOE’s policy interpretation of the law.10

DOE’s Memorandum of Law then argues that pursuant to its Process Guide, parents and students who are inappropriately refused an initial evaluation must receive a notice of their right to seek a due process hearing, and that the due process hearing provides both a recourse and a remedy for any violations of rights.11

I agree with DOE in so far as its argument goes. However, the right to contest the refusal (by appealing to the BSEA and obtaining a due process hearing) does not cure the original defect. It is self-evident that allowing the school district to refuse an evaluation and then giving the parent/student the right to appeal to the BSEA in order to seek to overcome that refusal is inconsistent with a parent’s/student’s unequivocal right to obtain an initial evaluation in the first place.

In contrast to the state special education requirements discussed above, the federal regulations provide only that prior to the initial provision of special education and related services, the school district must “conduct a full and individual initial evaluation.” 34 CFR 300.531.

In its published comments and discussion regarding these regulations, the Office of Special Education Programs of the United States Department of Education (hereafter, OSEP) wrote that under both prior law and these regulations, if a parent requests an evaluation, the school district must either notify the parent of the school district’s proposal to conduct an initial evaluation or its refusal to do so, depending on whether the school district “suspects that the child has a disability and needs special education and related services.” 64 Federal Register No. 48, page 12632 (March 12, 1999).

In other words, OSEP takes the position that federal law allows the school district to do essentially what is set forth in DOE’s Process Guide (page 6), discussed above. DOE argues from this that federal law supports its position that a school district has discretion not to perform an initial evaluation. However, the fact that OSEP’s interpretation of the federal regulations is consistent with DOE’s Process Guide does not lead to the conclusion that the federal regulations (and therefore DOE’s Process Guide) reflect the governing law in Massachusetts.

The federal regulations, in contrast to the state statute and state regulations, do not explicitly or implicitly address the question of whether a school district must perform an initial evaluation after a referral and parental consent. The federal regulations instead provide that if a student is to be found eligible for special education, then he/she must first be fully and individually evaluated. Therefore, the federal regulations differ markedly from state law, making OSEP’s interpretation of these federal regulations not relevant to an interpretation of the state statutory and regulatory provisions in this area.

In addition, it is well settled that federal special education law is a floor of procedural and substantive protections, and a state may add to or go beyond this floor through its own statute and regulations. For example, the federal statute and regulations utilize a free, appropriate public education standard while Massachusetts assures its students maximum possible educational development. The First Circuit Court of Appeals has recognized that the state may adopt a higher standard which then becomes incorporated into and is enforced as part of the federal right. David D. v. Dartmouth School Committee , 775 F.2d 411, 416-423 (1 st Cir. 1985), cert. den., 475 U.S. 1140 (1986); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).

Therefore, because the state statute and regulations in this matter provide greater rights for parents and students than the federal law, a school district must comply with the protections set forth in state law, and these state protections become incorporated into the federal special education requirements. For these reasons, the federal regulations (and OSEP’s interpretation of these regulations) are not relevant to an analysis of the legal standards governing this matter.

3. Application of state law to the facts of this case .

I now return to the state special education law, as set forth in regulation and statute, as discussed above. As previously explained at the end of part A1 of this Ruling, state special education law includes four governing principles applicable to the process to be followed regarding notice, an initial evaluation and determination of eligibility. These governing principles allow the school district no discretion to deviate from the procedures explicitly set forth in regulation and statute .

I now turn to the facts relevant to Student A, applying the above legal principles to determine whether BPS violated the law. I break down the analysis into three parts.

First, after receipt of the referral from Student A’s parents, BPS chose to utilize a six-week pre-referral process. BPS chose not to send the referral notice (which includes but is not limited to seeking parental consent) and did not evaluate the child within 30 days. In doing so, BPS exercised the discretion allowed under DOE’s Process Guide to decide whether to evaluate the student depending on whether BPS does or “does not suspect that the student has a disability.” DOE’s Process Guide, page 6. BPS used the form provided by DOE to refuse the evaluation. DOE’s form N-2.

However, the law requires that upon receipt of a referral for evaluation, BPS has no choice but to send the requisite notice, seek the parent’s consent and then provide or arrange for the evaluation of the student by a multidisciplinary team within thirty (30) school days. MGL c. 71B, s. 3, par. 5; 603 CMR 28.04(1) and (2), and 28.05(2). BPS violated these provisions of the law with respect to Student A by refusing to seek consent and arrange for the evaluation, and by using DOE’s form N-2 which does not comport with the law regarding notice subsequent to referral.

Second, implicit within the BPS actions and explicit within DOE’s Process Guide is that BPS had discretion to, in effect, determine that the student is not eligible without doing an evaluation. Under DOE’s Process Guide, the school district may “suspect” no disability, and then provide a notice of refusal to evaluate, leaving the parent with, in effect, a denial of eligibility and only the right to challenge this decision through a due process hearing. However, the law requires that BPS’s determination of whether the student is eligible for special education (including whether the student has the requisite disability) be on the basis of the “evaluative data, including information provided by the parent.” 603 CMR 28.02(9) and 28.05(2).

Technically, BPS did not violate this provision because it ultimately evaluated Student A and wrote an IEP calling for special education services. However, the presumed rationale for BPS’s actions in denying initially Student’s right to an evaluation was that BPS wanted to be able to determine that Student did not have a disability and was therefore not eligible for special education services. And, presumably BPS wanted to be able to make this determination outside of (and in violation of) the above-referenced regulatory provisions for determination of eligibility.

Third, under DOE’s Process Guide, as implemented by BPS, there are no time constraints, thereby allowing BPS discretion to take any amount of time to make its decision whether to evaluate Student. Consequently, DOE’s Process Guide allowed BPS to take any amount of time to determine eligibility for special education services.

However, the law provides clear time frames that must be complied with: 5 days to send notice and request parental consent after receiving a referral, 30 days (after parental consent) to complete the initial evaluation and 45 days (after parental consent) to complete the evaluation and determination of eligibility. 603 CMR 28.05(1). See also Chapter 159, section 418 of the Acts of 2000. BPS violated these provisions of the law with respect to Student A .12

I now turn to Student B. As explained above in the FACT section of this Ruling, it is not disputed that (1) BPS did not send the requisite notice (which includes the request for parental consent) within 5 days of referral of Student, and (2) BPS did not complete the evaluation within the requisite 30-day time frame. For the same reasons that BPS violated the law regarding these two matters with respect to Student A, BPS violated the law with respect to Student B regarding these matters.

However , the facts regarding Student B are not as complete as those for Student A, leaving the remaining legal issues to be resolved at a later time (presumably through an evidentiary hearing if the parties are not able to resolve this matter informally). For example, s ince it is disputed by the parties whether BPS did or did not initially refuse to evaluate Student B, I am not able to resolve this factual question regarding Student B , and I am therefore unable to determine whether BPS violated Student B’s rights with respect to this issue. For similar reasons, I am not able to determine whether BPS violated Student B’s rights regarding the 45-day rule described above.

4. Conclusion .

In response to the issue framed by BPS, I conclude that under state special education law, BPS had no choice but to evaluate Student A and Student B when the Students were referred to BPS by their Parents or Guardian ad Litem, assuming the Parents consent to the evaluation.

In response to the issue framed by Students/Parents, I conclude that BPS violated the rights of Student A under special education law by initially refusing and failing to seek parental consent and conduct an initial evaluation to determine eligibility after Student A was referred for an evaluation by his Parents. I am not able to draw a conclusion regarding Student B with respect to this issue although I nevertheless conclude that BPS violated the rights of Student B with respect to certain issues pertaining to notification and evaluation, as described above.

B. Whether DOE Violated Special Education Law

Through its Policies and Forms.

The second issue posed by Students/Parents is:

Whether DOE violated provisions of special education law by issuing policy and forms for use by school districts which fail to require school districts to evaluate a student who is referred for an evaluation by a parent.

In part A of this Ruling, I have addressed the legality of DOE policy as it applies to Students A and B and BPS because it was necessary to do so in order to resolve the dispute regarding evaluation and eligibility for special education services. But now, Students/Parents A and B ask that this Hearing Officer go a step further and rule on whether DOE has acted in accordance with the law not only with respect to Student A and Student B but generally with respect to all students who may apply for eligibility and with respect to all school districts implementing the DOE eligibility policy and forms. Ultimately, as explained in their Requests for Hearing, Students/Parents ask this Hearing Officer to declare that the relevant DOE policy (DOE’s Process Guide) and form violate special education law and further that this Hearing Officer order DOE to cease and desist from using this policy and form.

The BSEA is charged with responsibility for resolving disputes regarding the special education and related services of individual students. Although this may include joinder of a state agency as well as a BSEA order that the agency provide services when appropriate, this authority is again exercised only within the parameters of a dispute regarding the services of an individual student. 603 CMR 28.08(3). See also MGL c. 71B, s. 3 (the hearing officer may issue orders with respect to an individual child). I am unable to find support, within this regulatory/statutory structure, for a BSEA Hearing Officer to go beyond the resolution of disputes pertaining to individual students.

For these reasons, I find that I do not have the authority to make the determination requested by Students/Parents, and therefore decline to address the merits of this issue.

ORDER

Regarding the first issue (whether BPS violated provisions of special education law when it failed and refused to seek consent and conduct an evaluation to determine eligibility for special education after student was referred for an evaluation by parent), Students’ Motion for Partial Summary Judgment is ALLOWED with respect to Student A and is DENIED without prejudice with respect to Student B.13

Regarding the second issue (whether DOE violated provisions of special education law by issuing policy and forms for use by school districts which fail to require school districts to evaluate a student who is referred for an evaluation by a parent), Students’ Motion for Partial Summary Judgment is DENIED and DOE’s Motion for Summary Judgment is ALLOWED.14

Parents filed their Motion for Partial Summary Judgment pursuant to 801 CMR 1.01(7)(h) which allows for the filing of such a motion when the moving party is of the opinion that there is no material issue of fact related to all or part of a claim or defense.

DOE has stated in its Memorandum of Law that it has no knolwedge regarding facts specific to either Student A or Student B. DOE therefore has taken no position as to the facts relevant to Students A and B.

BPS takes the position that the request came from the Guardian ad Litem on or about October 26, 2000, while Parents of Student B take the position that the first request came from Student’s Mother in January 2000.

The state legislature has mandated that this regulatory language be in place. Through an outside section of the 2000-2001 state budget, the legislature required that the state Board of Education continue in effect and enforce the previous regulation (603 CMR 28.319) that addressed this issue and which mandated the 45 day time line from the receipt of parents’ written consent to completion of the evaluation, eligibility determination and development of any IEP. Chapter 159, section 418 of the Acts of 2000.

BPS, through its Memorandum of Law, does not independently argue that special education law supports its practices, but instead defers to DOE’s interpretations of law and relies on DOE’s Process Guide for support of BPS’ practices.

One of the factors that determines the appropriate weight to be given by a court to an agency’s interpretation of a statute is whether that interpretation has been consistently applied by the agency. Howard Johnson Co. v. Alcohol Beverages Control Commission , 24 Mass. App. Ct. 487, 492 n.6 (citing cases), rev. denied , 400 Mass. 1106 (1987). DOE argues that it has consistently interpreted its statute and regulation since 1991, asserting that it has never interpreted its own regulations to require an automatic initial evaluation upon parental request. DOE provides the affidavits of its State Director of Special Education and its Assistant Administrator for Program Quality Assurance Services, as well as seven DOE documents, in support of this position. Parents’ second Memorandum of Law vigorously disputes this proposition, providing three affidavits and seven DOE documents in support of their position that DOE’s Process Guide (dated April 2000) reflects a recent change in policy. I am unable to resolve this dispute in the context of Motions for Summary Judgment, nor is it necessary that I determine precisely the amount of deference to be granted since the outcome (under my analysis above) would be unaffected.

The regulations and statute use unequivocal, mandatory language — for example, “the school district shall provide or arrange for the evaluation of the student” within 30 school days of parental consent. 603 CMR 28.04(2). Similarly, the statute provides, for example : “Within thirty days after [the required notification to parents or guardians], the school committee shall provide an evaluation as hereinafter defined.” MGL c. 71B, s. 3, par. 5.

The word “shall” is ordinarily interpreted as having a mandatory or imperative obligation. In addition, a general rule exists that directions to public officers for the protection of rights are mandatory. [Internal citations omitted.]

At the Motion Hearing, DOE argued that the word “shall” may be construed as directive (thereby allowing some discretion as to when a rule must be followed) rather than mandatory. The Massachusetts Supreme Judicial Court has explained that the word “shall” is to be considered as directive, rather than mandatory, only in certain limited circumstances, and none of those limited circumstances are relevant to the matter before me. See Commonwealth v. Cook , 426 Mass. 174, 180-181 (1997) (explaining the exceptions to the general rule that the word “shall” is to be read as mandatory).

In Auer , we held that an agency’s interpretation of its own regulation is entitled to deference. But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous …. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. [Internal citations omitted.]

It may be that DOE’s Process Guide is not entitled to be reviewed under the deference standard articulated by the Massachusetts courts and the federal First Circuit Court of Appeals in the above-referenced cases. The application of the deference standard may depend, in part, on what process was used by DOE in the development and adoption of the Process Guide. The United States Supreme Court has made clear that agency interpretations contained in policy statements, agency manuals, enforcement guidelines and opinion letters, all of which lack the force of law, do not warrant Chevron -like deference by the federal courts (see discussion above regarding the First Circuit’s application of Chevron ). Instead, the US Supreme Court explains that these agency interpretations are “entitled to respect,” but only to the extent that the agency interpretations have the “power to persuade.” Christensen, et al. v. Harris Count, et al ., 529 US 576 (2000), citing to Skidmore v. Swift and Co ., 323 US 134, 140 (1944). See also Commonwealth of Massachusetts v. Federal Deposit Insurance Corporation , 102 F.3d 615, 621 (1 st Cir. 1996) (“Less formal interpretations — policy statements, guidelines, staff instructions, and litigation positions — are not accorded full Chevron deference”) ; Tinkham v. Department of Pub. Welfare , 11 Mass. App. Ct. 505, 513 (1981) (courts are reluctant to “allow an agency, a body which may be insulated from any political accountability, to impose binding rules which materially affect rights or liabilities without an opportunity to gain the benefit of the views of the parties affected”). But see, e.g., Emerson Hospital v. Rate Setting Commission , 408 Mass. 785, 788 (1990) (“commission’s interpretations of … the regulations passed to govern its implementation are entitled to substantial deference”). For the same reasons that I concluded above that I should not defer to DOE’s interpretation of state law, I further conclude that DOE’s interpretation does not have the “power to persuade” and therefore is not “entitled to respect” under the standards enunciated by the US Supreme Court in Christensen .

DOE’s Memorandum of Law suggests that a parent may file a complaint with DOE, in addition to requesting a hearing before the BSEA. I note, however, that DOE’s Process Guide only provides: “The parent has the right to challenge such a decision through a due process hearing.”

Use of BPS’s six-week referral process regarding Student A further violated the state special education statute which explicitly prohibits use of a pre-referral process to delay the requisite evaluation beyond the 30 day rule established by regulation and statute. MGL c. 71B, s. 2, par. 2 (“Such efforts and their results [regarding a pre-evaluation referral] … shall not be construed to limit or condition the right to refer a school age child for an evaluation under the provisions of this chapter”). Several BSEA Hearing Officers have found, in previous decisions, that the pre-referral process may not be used to delay the initial evaluation past the 30 day requirement. In re Boston Public Schools , 6 MSER 209 (7/18/00); In re Karina S ., 1 MSER 123 (8/11/95).

The Hearing Officer acknowledges with appreciation the thoroughness and high quality of the Memorandums of Law submitted by Parents’ attorney (Julia Landau), BPS’s attorney (Nancy Nevils) and DOE’s attorney (Kristin McIntosh).

About Special Education Law

Special Education Law (specialedlaw.com) is a free search engine for Massachusetts Bureau of Special Education Appeals (BSEA) decisions and rulings. It was created by Attorney Daniel S. Perlman and is maintained by Moor, Perlman and Gregg, LLC as a resource for parents, advocates, educators, and attorneys.

You can earn more about Attorney Perlman and his partners at www.mpgfirm.com.